Right to be Forgotten…..or the Right to Silence Criticism?

July 11, 2014

Michael King is an associate at law firm Cleaver Fulton Rankin with a particular interest in intellectual property, and outlines the implications to individuals and businesses on a recent European ruling regarding person information over the internet.

The European Court of Justice recently made a decision which has coined the term “the right to be forgotten” permitting individuals to have internet search results removed where they may effect privacy rights. It is more accurately described (but not so catchy) as the ‘right of an individual to have irrelevant, out-dated or inappropriate search results about them removed.’

What’s important though, is the material itself is not removed –the individual can only have the link removed, which may mean the same in practice, but not always.

The law relating to data protection and the right of subjects in relation to their personal information, as well as the obligations of “data controllers” is all set out in the Data Protection Act 1998, and this recent development came about as a result of a case being referred to the European Court by the Spanish courts to adjudicate on the interpretation of the Data Protection Directive.

The Spanish case was brought by an individual who complained about an article in their local newspaper. Google Spain was added as a party.

The judgment has far reaching implications in relation to data protection, privacy, freedom of information and defamation, and the decision has already been criticised as a further attack on free speech.

Whilst directed at search engines, the judgment is applicable to social media organisations and any website operator in Europe that displays personal information online. Potentially an operator may have to remove links to webpages published by third parties when the inclusion of the link is, or has become, incompatible with the Directive. This can include true information which has since become irrelevant.

All of these operators must now develop procedures to deal with requests by individuals to have links removed, regardless of whether the information is true. Reportedly thousands of “right to be forgotten” forms have already been completed online. The decision whether to remove the link is a balance between competing interests; the rights of the individual to privacy and the broader public interest. The operator must consider the nature of in the information; whether it is particularly sensitive and relates to an individual’s private life; and the interests of the general public in knowing the information.

Businesses who operate websites that display personal information or have links to other websites also need to comply with this ruling. They too need procedures that process requests from individuals, and also take competing interests into account to act proportionately.

In the first instance, individuals should contact the relevant website operator to request that the information is removed. If the operator is unwilling, the individual can make a complaint to the Information Commissioner in the UK. Depending on the nature of the information and the circumstances, the individual may have to revert to the civil courts for an emergency injunction to have the materials removed.

This is a new area of law. Over time, best practice and procedures will develop as to how such requests should be treated. It will be interesting to see where the balance is struck between the competing interests of privacy and the public good, especially where freedom of expression and web operators’ ability to conduct legitimate activities are involved.

Michael King, Associate Solicitor

This is a general guide on the law only. It is not intended nor should it be taken as legal advice. Further advice should be sought from a professional legal adviser.
Please contact Cleaver Fulton Rankin on 028 9024 3141 or alternatively visit www.cfrlaw.co.uk